Judgement Consolidated appeals from two decrees of the High Court (January 20, 1904), which dismissed two suits with costs, thereby reversing two decrees of the Subordinate Judge of Monghyr (March 31, 1900), which were in favour of the appellants, to the effect that each plaintiff should get a decree for a moiety of the proper by in suit as a pre-emptor upon his depositing in Court half the price, namely, Rs.87,000 within a month, each plaintiff to have liberty to deposit the full price in case of default by the other, and in that case to obtain possession of the whole property sold. The suits were brought by predecessors of the appellants on the same day, June 30, 1898, to enforce in each case, as against the vendor and purchaser of the properties in suit, the plaintiffs right of pre-emption on account of his being a co-sharer therein. Each plaintiff made the other a co-defendant to his suit, and claimed a right of pre-emption over the whole, but if found entitled to only one-half of the properties in suit, then that each plaintiff should -be awarded possession over a moiety of the same on depositing the purchase-money in equal halves. The sale in question was effected on December 17, 1897, by the respondent Anupbati Koeri, one of the two widows of Kamla Pershad Singh, to Nirbhoy Chowdhry, the first defendant, since deceased, and related to her four-anna share (with some exceptions) in the properties named in the schedule to the plaint. The two plaintiffs had been in 1891 joint purchasers in equal shares of the eight-anna share therein, which then belonged to Kamla Pershad Singhs brother Jugal Pershad. They were also joint purchasers in equal shares on July 9, 1897, of the co-widows four-anna share therein ; and accordingly were at the time of the sale on December 17, 1897, entitled to a six-anna share each in the said properties. The plaints narrated the above sales, and also the circum-stances under which the plaintiffs had obtained possession of the said twelve-anna share, and also at a later date of Anupbatis four-anna share by virtue of a transfer from a zurpeshgi mortgagee thereof. The plaints vary in one respect. The plaints narrated the above sales, and also the circum-stances under which the plaintiffs had obtained possession of the said twelve-anna share, and also at a later date of Anupbatis four-anna share by virtue of a transfer from a zurpeshgi mortgagee thereof. The plaints vary in one respect. Jowhuri Lal, the predecessor of the appellant in the second appeal, alleged that he first heard of the sale in question on December 20, 1897, and Mangni Ram, the predecessor of the appellant in the first appeal, alleged that he first heard of the said sale on January 5, 1898, at 4 p.m. There are concurrent findings of fact that both plaintiffs went through the ceremony of talab-i-mowasibat in due form and at the proper time. The Courts differed as to the due performance in due time of the ceremony of talab-i-istish-had. The facts with regard to this latter ceremony were thus found by the Subordinate Judge " On the evening of December 20, 1897, Jowhuri Lal was told in general terms that a sale had been effected on December 21, 1897. He sent a man to his agent at Gogri to verify the fact of the sale. and to obtain a copy of the deed of sale if registered. From December 21 to 26, 1897, the office of the registrar was closed. On December 27, 1897, the agent applied for a copy of the deed of sale, which he received on December 30, 1897, and forwarded by registered post to Jowhuri Lal, to whom its was delivered on January 4, 1898. On January 5, 1898, Mangni Ram consulted a local barrister. On January 6, 1898, both Mangni Ram and Jowhuri Lal applied for a police guard to protect their agents, who were taking the purchase-money to tender the same to Nirbhoy Chowdhry at Maheshpur, and on January 7, 1898, the talab-i-istish-had was made at his house. On January 8, 1898, arrangements were made to go to Anupbati Koeris house and to the property sold. January 9 was a Sunday and no steamers were running. On January 11 and 12, 1898, the talab-i-istish-had was made on the property itself and at the house of Anupbati Koeri." Law. Rep. 35 Ind. App. On January 8, 1898, arrangements were made to go to Anupbati Koeris house and to the property sold. January 9 was a Sunday and no steamers were running. On January 11 and 12, 1898, the talab-i-istish-had was made on the property itself and at the house of Anupbati Koeri." Law. Rep. 35 Ind. App. 60 ( 1907- 1908) Baijnath Ram Gaenka V. Ramdhari Chowdhry 11 On this evidence the Subordinate Judge found " that there was no unreasonable delay or any act of gross negligence in the performance of this ceremony." The Subordinate Judge noted in his judgment that after the institution of the suits the plaintiffs withdrew from Court the amount of the sudharni (i.e., mortgage) debt deposited by the defendant Nirbhoy Chowdhry on account of his share of his vendor Anupbati, and gave up possession of the disputed property; and that the plaints were accordingly amended. The High Court was " unable to agree with the Subordinate Judge that it (namely, the talab-i-istish-had) was performed with the necessary promptitude." It was not performed with the least practicable delay. Neither of the plaintiffs went to the purchasers house till January 7. " The evidence discloses that there was considerable and certainly sufficient delay to invalidate the talab-i-istish-had on the part of both plaintiffs." There was an unnecessary delay of three days in getting a copy of the kobala ; at least two days further delay in Jowhuris accepting from the post office the registered copy thereof. " He was evidently during these two days trying to gain time for the purpose of reflection." It is unquestionable. the High Court added, that the further delay of Jowhuri from January 4 to 7 was unnecessary. So also the delay of the plaintiff Mangi from January 5 to 7. The excuses given that they consulted a barrister and obtained a police guard to protect the carriage of money, which it was unnecessary in point of law to tender, were insufficient in both cases, doubly so in Mangnis case, as he took his money in notes, which he could carry on his person. The High Court also held that the plaintiffs had waived their rights. The High Court also held that the plaintiffs had waived their rights. " Their agents told the defendant Anupbati and her nephew Jadubir that they would give no more, and that if Anupbati would not accept the Rs.36,000, she was at liberty to sell the proper by to whomsoever she pleased." The plaintiff Jowhuri Lal, moreover, was well aware of the negotiations, and endeavoured to frustrate them. De Gruyther and G. H. A. Branson, for the appellants, contended that on the evidence the Subordinate Judge was right in finding that the second ceremony of talab-i-istish- had been duly and properly performed with as little delay as was possible. Reference was made to Hamiitons Hedaya, bk. 38, c. 2; Jarfar Khan v. Jahbar Meah (( 1884) I. L. R. 10 Calc. 383.); Baillies Digest of Mahomedan Law, bk. 7, c. % pp. 481, 489, 507; Syad Amjad Hossein v. Kharag Sen Sahu (( 1870) 4 Beng. L. R. A. C. 203.); Ameer Alis Mahomedan Law, 3rd ed. vol. 1, p, 607. It was further contended on the evidence that the appellants did not acquiesce in the sale to Nirbhoy, and had not, by their conduct or otherwise. waived their right to pre-empt. Act XII. of 1887, s. 37, was referred to as showing the law to be applied, the parties to this case being Hindus. Jardine, K.C., and Cowell, for the respondents, contended that the onus was on the appellants to shew that they had performed the ceremonies, which were a condition precedent to the exercise of rights of pre-emption, with the necessary promptitude and the least possible delay. A co-sharers right of preemption, as tending to restrict the free sale and purchase of property is strictissimi juris, is lost unless claimed with promptitude, and is relinquished by any acquiescence in the original sale to be implied from the conduct of those claiming to pre-empt. The right has always been kept by the Courts within narrow limits ; it was a personal right not transmissible to heirs, and the Courts had always declined to extend it. Reference was made to Baillie, p. 489 ; Ameer Alis Mahomedan Law, 3rd ed. vol. 1, p. 605-8; Sir E. Wilsons Mahomedan Law, pp. 331, 335, art. 379. The right has always been kept by the Courts within narrow limits ; it was a personal right not transmissible to heirs, and the Courts had always declined to extend it. Reference was made to Baillie, p. 489 ; Ameer Alis Mahomedan Law, 3rd ed. vol. 1, p. 605-8; Sir E. Wilsons Mahomedan Law, pp. 331, 335, art. 379. The High Court was right in finding that the second ceremony had not been performed with the least practicable delay, and the Subordinate Judge has restricted his finding to there having been no unreasonable delay and no gross negligence see Jamilan v. Latif Hossein. (( 1871) 8 Beng. L. R. 160; 16 S. W. R. P. B. 13.) It was further contended that the appellants, by taking the mortgage money out of Court, which was in reality the balance of the purchase-money, and by having made over possession to the purchaser, had acquiesced in the sale, and had relinquished their pre-emptive Law. Rep. 35 Ind. App. 60 ( 1907- 1908) Baijnath Ram Gaenka V. Ramdhari Chowdhry 12 right see Habibunnissa v. Barket Ali (( 1886) I. L. R. 8 Allah. 275.); Transfer of Property Act, 1882, ss. 82, 84. De Gruyther replied. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. These two Consolidated appeals arise out of two suits, one brought by Mangni Ram, the other by Jowhuri Lal, to enforce a right of pre-emption in respect of a share in certain properties comprised in taluqa Rasulpur Bhatowni. By conveyances dated January 28, 1891, and July 9, 1897, Mangni and Jowhuri had become the owners in equal .hares of twelve annas of the property. The remaining four annas be-longed to the respondent Anupbati Koeri, who on December 17, 1897, sold those four annas to Nirbhoy Chowdhry; and that is the sale against which the right of pre-emption is claimed. It has been found that Jowhuri first heard of the sale on December 20, 1897, and that thereupon he at once made the immediate claim to pre-empt which the law requires. Mangni first heard of the sale on January 5, 1898, and at once made his immediate claim. No question therefore arises with regard to the first claim by each of the two men. Mangni first heard of the sale on January 5, 1898, and at once made his immediate claim. No question therefore arises with regard to the first claim by each of the two men. The principal controversy between the parties, and the point on which the Courts below have differed, is an alleged delay in making the second claim, the claim with witnesses, which also is required by law. Jowhuri, on hearing of the sale, which he did at Monghyr, at once sent to his agent at or near Gogri to procure from the registry office a copy of the sale deed. The agent obtained that copy and sent it to Jowhuri, who actually received it on January 4. The High Court, differing from the Subordinate Judge, has found unreasonable delay at two points of these proceedings. It has held, first, that the copy from the registry was not obtained and sent off as soon as it might have been. But an examination of the official calendar shews clearly that the learned judges were led to this conclusion by a misapprehension as to the time during which the registry office was closed for the Christmas vacation. The High Court held, secondly, that Jowhuri was guilty of wilful delay by his refusal to receive the packet containing the copy of the sale deed from the post office peon. This conclusion is based upon the evidence of the peon himself, which the learned judges believed. But the judge who had this witness before him disbelieved his story. That story is admittedly inconsistent with the rules of the post office ; and it finds no support from the witnesss own indorsement made at the time. Their Lordships think that the Subordinate Judge was right in rejecting that story, and therefore the second allegation of delay fails. The more serious case of delay is said to have occurred subsequently, and with respect to it the position of Mangni and Jowhuri is identical. On January 5 they knew everything which it was essential to know. On that day they took the advice of a local barrister, and in accordance with his advice they on the next day, January 6, applied to the proper office for a police guard to protect the messengers and the money, which it was proposed those messengers should tender. This guard they obtained on January 7, and the messengers started. On that day they took the advice of a local barrister, and in accordance with his advice they on the next day, January 6, applied to the proper office for a police guard to protect the messengers and the money, which it was proposed those messengers should tender. This guard they obtained on January 7, and the messengers started. On that day those messengers made the claim (and, as has been found, with due formalities) at the house of Nirbhoy, the purchaser. On subsequent days the claim was renewed at the house of the vendor, and upon the land. The question that arises is whether the interval that elapsed between January 5 and January 7 is a fatal delay. The Subordinate Judge held that it was not; the High Court held that it was. There is no question of law in the case. It is clear that the right of pre-emption must be exercised, and the claims necessary to give effect to it must be made, with the utmost promptitude, and that any unreasonable or unnecessary delay is to be construed as an election not to pre-empt. And whether there has been such delay is a question to be determined upon the facts of each particular case. It is Law. Rep. 35 Ind. App. 60 ( 1907- 1908) Baijnath Ram Gaenka V. Ramdhari Chowdhry 13 enough for their Lordships to say that, in their opinion, the grounds stated by the learned judges of the High Court for overruling the decision of the first Court, on a pure question of fact, were insufficient. Another point argued on behalf of the respondents arises in this way The two plaintiffs Mangni and Jowhuri had obtained a transfer of a zurpeshgi mortgage binding the four annas share sold by Anupbati to Nirbhoy. Alter that sale Nirbhoy paid the mortgage money into Court, in accordance with the provisions of the Transfer of Property Act, for the purpose of redeeming the mortgage ; and after some hesitation the two plaintiffs took out that money. It was contended that by so doing they had recognized the title of Nirbhoy under his purchase and could not claim pre-emption. Their Lordships cannot agree with this contention. Until a decree for pre-emption was made Nirbhoy owned the land as purchaser, and had a right to redeem. It was contended that by so doing they had recognized the title of Nirbhoy under his purchase and could not claim pre-emption. Their Lordships cannot agree with this contention. Until a decree for pre-emption was made Nirbhoy owned the land as purchaser, and had a right to redeem. The taking out of the money by the plaintiffs, as mortgagees, was no recognition of anything more than this, and was quite consistent with the claim to pre-empt. There remains only one other point for consideration, as to which again the Courts in India have differed; and that. is as to the amount actually paid by Nirbhoy to Anupbati, the difference being Rs.7850. As to this point their Lordships do not find a clear and positive finding by the Subordinate Judge that the ful sum named in the deed of sale was not in fact paid; and they are not prepared to dissent upon this point from the judgment of the High Court. Their Lordships will humbly advise His Majesty that these appeals should be allowed; that the decrees of the High Court should be discharged with costs; that the decrees of the Court of the Subordinate Judge should be varied by directing the price of pre-emption to be calculated on the sum of Rs.44,850 (the price named in the deed of sale from Anupbati to Nirbhoy) and the amounts to be deposited in the Court of the Subordinate Judge within such times as the High Court or the Subordinate Judge may determine ; that, subject to these variations and the payment to the appellants of additional costs (if any), the decrees of the Subordinate Judge should be restored ; and that the cases should be remitted to the High Court in order that the necessary steps may be taken for the disposal thereof on the above footing. The respondents who have resisted the appeals will pay the costs thereof.